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The law governing synthetic cannabis and other "legal highs" has not achieved its purpose of protecting health and minimising harm, the Ministry of Health says.
The Psychoactive Substances Act came into force in July 2013 and was amended in May the following year.
The Act makes products containing psychoactive substances, which are proven to have no more than a low risk of harm, available through a regulated market.
One of its provisions was that within five years the Ministry of Health was to review how it was working.
Released last week, the review highlighted numerous issues with the law, which included:
• A strong market for unapproved, illicit psychoactive substances had emerged.
• That market was underground, making it difficult to monitor health issues.
• The drug classification system could not keep up with the number of substances being imported.
"Anecdotal reports of harm are of considerable concern," the review said.
"The coroner reports current investigations of 40 to 45 deaths provisionally related to psychoactive substances.
"Hospital emergency departments and ambulance services report increased presentations due to psychoactive substances, but reliable data is not available."
The National Intelligence Bureau told the ministry the environment had changed since the Act was passed — when between 200 and 300 unregulated products were available.
Now, some unapproved products and synthetic cannabinoids being sold were riskier and more prevalent than what was available before the law change.
The increase in illicit new products had brought with it many more convictions: from seven in 2013 to 172 in 2017.
One person was imprisoned for breaching the Act in 2013: in 2017, it was 43.
"In line with other drug-related legislation, Maori appear to be overrepresented in the number of convictions under the Psychoactive Substances Act," the review said.
It noted two factors which might influence future policy making — the planned referendum on personal cannabis use in 2020, and a member’s Bill before the House which aimed to increase the penalties for breach.
"The result of the referendum potentially influences changes to offences and penalties for cannabis-related offences.
"If that was the case, it would be reasonable to expect that offences and penalties for other drugs and psychoactive substances should also be considered."
The Psychoactive Substances (Increasing Penalty for Supply and Distribution) Bill, sponsored by National MP Simeon Brown, is awaiting its third reading.
Labour and the Green Party oppose it, but it has been supported by New Zealand First and Act, meaning it may well become law this year.
The Bill aims to align the penalty for breaking the Psychoactive Substances Act with the penalties relating to Class C drugs in the Misuse of Drugs Act — which would allow judges to impose longer sentences.
The review noted that increased penalties were not necessarily a deterrent.
"The international and domestic evidence does not support the contention that increased penalties results in reduced incidences of offending."